Mayors cannot stop utility operators cutting off customers in arrears
Municipal councils are extraneous to contracts between Acea Ato 5 and water customers
Regional administrative court judges have issued several judgments in recent years that make it clear that mayors are not entitled to use extraordinary emergency orders to prevent integrated water service operators from disconnecting users in arrears or to force them to reconnect users who have been cut off due to non-payment of bills. By the same token, they cannot use these orders to generically prohibit utility operators - without time limits - from disconnecting households that are in arrears.
All the orders reviewed by the administrative courts, involving several municipal councils within the territory of Frosinone and covered by Acea Ato 5, resulted in the issue of judgments - in simplified form in almost every case, due to the manifest unlawfulness of the measure - that overturned the mayoral order and awarded costs against the municipal council.
“The Mayor,” explained the regional administrative court in every case, “cannot use extraordinary emergency orders to prohibit utility operators from disconnecting individual users who are in arrears, as this would constitute a misuse of power, whereby the municipal council - which is extraneous to the contract between the operator and the user - would deny the operator recourse to the legal remedy of cutting off the water supply to users who are in arrears (...) regardless of whether non-payment was attributable to social factors.”
With regard to the public health hazard argument, on which these orders are often based, the regional administrative court explained: “a) it has not been demonstrated in the case in point that any public health hazard currently exists (...); b) in effect, the order amounts to an impairment of the contract between the integrated water service operator and individual users, because it denies the former - on a general basis and without time limits - recourse to the main instrument at its disposal for responding to non-payment by the latter.”
In recent weeks, lastly, the Lazio regional administrative court also issued rulings on two orders used by mayors to require operators to provide the municipal council with the details of users in arrears before disconnecting them, so as to enable the council to determine whether the situations of these users fell within the scope of cases in which disconnection is not permitted, on the grounds of serious socio-economic hardship, as established in the prime ministerial decree of 29 August 2016.
Although the judgments state that the case was dropped (because the mayors recognized that the measures were potentially unlawful and therefore chose to withdraw them at their own initiative before being required to do so by the courts), the judge nonetheless went into the merits of the case - to the extent that he awarded costs against the municipal councils as the virtually unsuccessful parties - and explained in both cases that: “the measure (...) appears to be manifestly unlawful because it breaches articles 50 and 54 of legislative decree No. 267 of 2000 and the general principles governing the adoption of extraordinary emergency orders on the grounds that: a) it was adopted on the basis of a merely hypothetical future hazard; b) it failed to set out any reasons precluding recourse to ordinary instruments; c) it issued a generic and generalized order to reconnect water supplies to households in arrears without any time limit.”
The regional administrative court judgments cited here are published on the administrative justice website (giustizia-amministrativa), where they are freely available for consultation.